Pages

Sunday, November 01, 2009

Control, or React?

I posted a few days ago about the Law Commission's proposal that cohabitants should have an entitlement on intestacy. My good friend John Hirst of Jailhouselawyer's Blog has drawn my attention to this article in The Times, in which Ross Clark (left) argues against the proposal, saying that: "For any cohabiting couples who don’t like the inheritance laws there is a simple answer — get married."

The whole issue of cohabitants' rights raises strong feelings, especially amongst those who are against. Most family lawyers are in favour, as they have seen first hand the injustices that the lack of rights can cause. It is all very well saying "if you don't like it, get married", but this raises the fundamental question of whether the law should be used as a tool to control how people conduct their relationships. Personally, I do not think that it should, or even that it could - in a free society, at least. If people want to live their lives in a certain way (and it is not that they can't be bothered to get married, as Clark suggests) then they should be free to do so. The law should react to changes in society (rather than try to control them) and ensure that injustices do not happen as a result of those changes.

Really? And the rest of us should just do nothing in the face of injustice? Not a very pleasant society. Would you ignore a gay person getting beaten up by a homophobe? Just because you don't agree with the way some people choose to live does not mean that they should be left to suffer injustice.

I'm sorry, what injustice? If you choose to have a relationship and not cohabit there are consequences. If you choose to cohabit and not marry there are consequences. The injustice that denied the rights of a married couple to same sex partners has, rightly, been removed.It's no more of an injustice than the the consequences of renting your home rather than taking out a mortgage.How an educated professional could equate this opinion with support for hate crime is beyond me. It'something of an insult, too.

You hide behind anonymity so I don't know who you are, but you don't seem to be a family lawyer, otherwise you would have seen the injustices that cohabitees can suffer. Your first comment was callous in its indifference to injustice, hence my response.

Again, it's not injustice. If the cohabiters were denied the right to marry for some reason, it would be, but what you see as an injustice, I see as the consequences of a freely made decision by two grown ups to live together, but not to marry. If you feel that those consequences are not well enough appreciated to make that choice a properly informed one, then fair enough. BTW, how would you apply "If people want to live their lives in a certain way then they should be free to do so." to the homophobe in your post above.

There is nothing to stop anyone from being a homophobe - it is their right to hold whatever views they wish. However, in my example above they were committing an illegal act - obviously, it is not illegal to cohabit. As you suggest, part of the problem with cohabitees is that they do not understand that they have no rights. Many of them - perhaps even a majority - believe in the 'common-law marriage', which of course does not exist.

If people want to cohabit and not marry, there's nothing stopping them from drawing up an agreement about the division of the spoils for when (or rather, if) they split up. All that's needed is for such agreements to be enforceable (I have no idea whether they are now or not), with checks that the agreement *if it exists* is fair just like there are with contracts.

Of course, most people won't do that, because "we'll never split up, and to even mention it would be an insult to my partner". But that's their choice. The same choice, and the same argument against drawing one up, applies to pre-nuptual agreements.

Of course, if the proposal is all about being "fair", then it needs to make sure that it's not restricted to couples (what if one partner in a threesome dies?) or to those who cohabit like a married couple (what if two friends live together in their old age?).

I am a family lawyer and cohabitants do have rights. If they move in from the beginning then they can hold the property as joint tenants or tenants in common.

Even if their name isn't on the deeds they can draw up a declaration of trust stating whether they have an interest. If not, and their partner dies and presuming they did not leave a will and even sometes if they did) they can bring a claim against the estate under TOLATA if they can show an interest (by direct contribution or by showing the deceased intended them to have an interest in the property) or alternatively if they show they were financially dependent they can bring a claim under the Inheritance (Provision for dependents) Act.

I take on board your point about people thinking they are common law spouces and not knowing their rights but The thing we have to bear in mind is that cohabitation is not married. It is a way by which people can live together without necessarily granting the other rights. We should avoid blurring the distinction further.

Thank you for taking the time to comment on this post. Constructive comments are always welcome, even if they do not coincide with my views! Please note, however, that comments will be removed or not published if I consider that:* They are not relevant to the subject of this post; or* They are (or are possibly) defamatory; or* They breach court reporting rules; or* They contain derogatory, abusive or threatening language; or* They contain 'spam' advertisements (including links to any commercial websites).Please also note that I am unable to give advice.

Disclaimer

Nothing in this blog should be construed as legal advice. If you require legal advice upon any family law related matter then you should consult a solicitor. Any links to other blogs or web sites are provided for convenience only and I cannot accept any responsibility for the contents of such linked blogs/sites.